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Chesapeake Gives up on Enforcing Illegal Leases in NY

 According to a report from Reuters, Chesapeake Energy has finally given up its fight to hold onto expired NY leases. For the past two years the gas company has been insisting that the leases should be extended beyond their initial termination date because they weren't allowed to use horizontal hydro-fracking in NY State. They pointed to the "force majeure" clause in their leases - a clause that states that the company wouldn't be held liable for not keeping the contract should a flood, hurricane, labor strike or some-such make it impossible to drill. They interpreted that to also include the state's hold on horizontal hydrofracking ... claiming that they "couldn't drill". A claim that US District Court Judge David Hurd rejected back in November.

For the past two years (and more in some cases) Chesapeake has been sending "force majeure" letters to landowners whose leases had expired. These letters claimed that the leases weren't "really" expired, and they offered new leases - with lots less money - to the landowners.

But now, after two years of legal fighting, they are ready to "walk away" from NY, says Reuters. It's not because NY is "fracking unfriendly" or "has a moratorium" - the real reason Chesapeake is tossing their cards on the table and leaving is because the legal battle is getting pricey and there are other, better places to drill. Chesapeake isn't the only player to leave the northeast; A couple weeks ago Hess Corporation and Newfield Appalachia pulled out of their leases in Wayne County, PA. It was a business decision, they told the press - better drilling elsewhere.

Making Peaceful Protest a Crime in NY

On June 28, Jeremy Alderson chained himself to the gate of the Inergy gas storage facility in Watkins Glen, NY. Alderson, who lives in Hector and publishes the “No Frack Almanac, was arrested earlier in the year for a similar protest. But, the veteran protester said, “Nobody voted for this [converting the salt mine to gas storage]. Nobody was consulted about this; it’s just being imposed on us from outside.”

At issue is a plan to store liquified gas in salt caverns beneath Seneca lake – caverns which have been declared structurally unsound and prone to catastrophic accidents. More than 100,000 people depend on Seneca Lake for their drinking water, and an accident would pollute that vital resource.

Local wineries, businesses, and community members have expressed dissent over DEC’s less than stellar review of the potential economic and environmental impacts of Inergy’s proposal to expand the gas storage capacity of the facility from 1.5 to 10.0 billion cubic feet. Local municipal elected officials are deaf to the pleas of constituents who are concerned about the potential effects of the gas storage project. So Alderson, and a few others who have brought their grievances to their electeds, are left with few options.

Alderson chose to chain himself to the gate and undergo a second arrest. But this time, the gas corporation decided to try something new: to prevent Alderson from further protests by filing a restraining order against him.

A “restraining order”, also called an “order of protection” is a legal injunction that requires a party to do, or to refrain from doing, certain things. Such orders are commonly used in cases of domestic violence, harassment, stalking or sexual assault to protect an injured party. However, courts are starting to use restraining orders to muzzle protesters. Peaceful protesters. Non-violent protesters.

Here is Alderson's report of what happened in court yesterday (August 1):

I went to court again today, this time in the Cayuta Town court, where the case regarding my second arrest is now being heard.

Everything was as routine as I expected it to be, with me pleading not guilty and my lawyer, Jerry Kinchy, saying that he would be filing motions prior to trial.  Then, out of the blue, the assistant district attorney made the request that an order of protection be granted, restraining me from appearing at the Inergy site.

Jerry objected that an order of protection can't be issued on behalf of a corporation, but only on behalf of an individual.  The D.A. argued that the order should be issued restraining me from being near Barry Moon, who he said was the manager of the Inergy facility (a different gentleman, identified, I believe, as Inergy's "site manager," testified against me at my first trial, not Mr. Moon).  I should be kept away from the Inergy facility, the DA said, because it is Mr. Moon's place of business, and of course, I shouldn't be allowed to contact him or go near his residence.

I told the judge that I did not know Mr. Moon and would not know if he was standing beside me, which would make compliance with this order difficult. The judge, Robert E. Johnson, said I should stay away from the Inergy facility and wrote out the order.  As a result, I am now barred from being anywhere within 100 feet of the Inergy fence.  I am also barred from "third party contact," meaning that I can't tell anybody to go to the Inergy site for any reason, including for a peaceful protest. The judge made it clear that violating this order would be a misdemeanor and a higher level of seriousness than what I am facing now.

Leaving aside the fact that I am in some danger of accidentally violating this order because I don't know where Mr. Moon's residence is and I still wouldn't know him if I saw him, there are much more serious issues here.  For one thing, I have, effectively, been given a punishment before my case has even been heard, and that sure doesn't seem right.

A restraining order is understandable when issued to an accused batterer, but it's a very different matter indeed when it becomes the mechanism for taking away someone's right to freedom of speech, especially when no evidence was even submitted to the court that my actions had done harm to Mr. Moon or anyone else.  In fact, the law (NY CPL 530.13) states that the court "may for good cause shown" issue such an order, but no cause -- good, bad, or indifferent -- was offered in court today.

My wife keeps wondering aloud whose idea this was and she suspects that it was Inergy's attorney who suggested it to the D.A.  We can't know, of course, but could a Schuyler County D.A. have come up with this novel legal theory on his own without prompting?

Yes, I know that in a day and age when our president claims he has the right to kill American citizens without trial, it's just kind of quaint and old-fashioned to care about the Constitution, but I do care.  And I simply cannot remember anything in the Constitution giving the government authority to forbid free speech if there is a risk that it will upset or inconvenience a corporation.

The part that really bothers me is what this says about America.  Jerry says he will file a motion to have this overturned, but you can't file a motion to overturn tyranny.

One Well Does Not a Study Make

according to some folks, this is A-OK water

Just ten days ago, on July 19, AP reported that fracking chemicals didn't contaminate drinking water. That article was supposedly based on a "landmark federal study on hydraulic fracturing" conducted by the Dept. of Energy at their National Energy Technology Lab (NETL).

There's only one problem a couple problems:
1. The study, which has been going on for nearly a year, is incomplete. In fact, on the same day that AP broke its story, NETL released a statement to the press  noting that they are still in the "early stages" of this ongoing study. "While nothing of concern has been found thus far, the results are far too preliminary to make any firm claims."
Which seems to be what the AP article was trying to do: make firm claims. Claims that fracking doesn't pollute groundwater would be great news for the gas industry - and hundreds of landowners who'd like to lease their land on the chance of getting rich off gas.

2. The more important problem is that the study is based on one single well. A well that the gas drillers chose, and allowed DOE researchers to use in their study. Not only is the sample size too small but, as Duke University scientist Rob Jackson pointed out, the drilling company may have consciously or unconsciously taken extra care with that particular site, since they knew it was being watched. Jackson, who was not part of that study, makes an important point: this study was neither representative nor unbiased. A true scientific study is designed to avoid sample bias (such as a drilling operator choosing one well over another because it has fewer problems). And a sample size of just one... the less said, the better.

One week to the day of the AP report, scientists at the University of Texas at Arlington released news that their peer-reviewed study of 100 private water wells in and near the Barnett Shale shows elevated levels of contaminants including arsenic, barium, selenium,  and strontium at levels exceeding  EPA's maximum contaminant limit.

One day after news of the UT study was released, the LA Times reported that EPA may have curtailed their investigations of contaminated water in Dimock, PA and Pavillion, WY prematurely due to political pressure. Seems some of the PA staffers in the agency had data showing that there were contaminants in local water wells and had lobbied their superiors to continue with the study.

Meanwhile, U.S. Rep. Thomas Reed, from upstate NY which sits atop the thin edge of Marcellus shale, recently testified that the biggest threat to Marcellus Shale development isn't the spills, broken casings, or methane migration - it's the anti-fracking movement.

National Energy Technology Laboratory

National Energy Technology Laboratory

National Energy Technology Laboratory

DEC Stuck in Neutral

Way back in December people - lots of people from all walks of life and all sides of the fracking issue - sent comments to NY Department of Environmental Conservation (DEC) regarding proposed fracking regulations. They had one month to comment on 100-plus pages of proposed regulations, and then, commencing January 12th, DEC would read through the comments and continue the rule-making process.

On January 11, environmental groups presented DEC with 200,000 comments. Landowner groups and drilling advocates also responded with thousands of comments.

And what did DEC do with those boxes and boxes of comments? Nobody knows. What they didn't do was complete the rule-making process by the March deadline. Now, half-a-year after receiving the comments, people are wondering: did DEC even read them? Did they file them? Did they toss them in the recycling bin unread?

According to Jon Campbell, of Gannett's Albany Bureau, DEC has ignored the newspaper's inquiries regarding the fate of the hundreds of thousands of comments. This, from an administration that promised transparency in the whole process, from proposed environmental impact statements to proposed rules to proposed health review...

About that health review ... apparently it's on summer vacation, because it still hasn't been completed. So now NY has no fracking regulations and, apparently, no energy to respond to the comments that citizens submitted to their government. They also don't have the health review - and no timeline for when to expect one. Originally a health review was expected sometime last January or February.

No progress. No transparency. And no comment from Cuomo. Assemblyman Robert Sweeney, who chairs the Assembly Environmental Conservation Committee, told the press that transparency of the review process has been "insufficient." He thinks DEC has an obligation to respond to the comments.